Thibeli v St Joseph Hospital

Case No: 
LC 41/12
Media Neutral Citation: 
[2017] LSLC 4
Judgment Date: 
9 March, 2017
Judge: 
F.M. KHABO

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IN THE LABOUR COURT OF LESOTHO                                                           LC 41/12

HELD AT MASERU

In the matter between:    

PASEKA THIBELI                                                                                                APPLICANT

and

ST JOSEPH’S HOSPITAL                                                                        RESPONDENT

 

JUDGMENT

____________________________________________________________

DATE: 09/03/17

Unfair labour practice claim - alleged discrimination by the employer - Employer raising the following points in limine: (i) Lis pendens (ii) Jurisdiction and (iii) Prescription - Court finds it lacks jurisdiction on the cause of action - no need to go into the other issues - Applicant free to approach the DDPR.

1. The applicant has lodged an unfair labour practice claim based on discrimination. He alleges that he was engaged by the respondent as a Counsellor in 1997 on permanent and pensionable terms and later assumed the position of Social Worker at grade E. He intimated that following the revision of Government employees’ salaries in 2000[1] the respondent also revised its employees’ salaries culminating in Social Workers being upgraded to F. He contended that despite this salary review, his salary was never changed. He alleged that he made several pleas to the respondent to effect the change to his salary, but to no avail. He claims that he was discriminated against because salaries of other employees were reviewed except his. Wherefore, he seeks an order in the following terms:-

  1. a declaration that the respondent unfairly discriminated against him;

     

  2. that he be paid a sum of One Hundred and Fifty Thousand, Six Hundred and Fifty - Four Maloti (M150 654.00) as damages for the said discrimination;

     

  3. that he be remunerated at grade F;

     

  4. that he be paid his salary arrears to the date of judgment; and

     

  5. that he be awarded costs of suit at an attorney and client scale.

     

 

2. Respondent’s immediate reaction to this claim was to raise the following points in limine :-

  1. Lis pendens - that applicant’s case in LC 34/11 filed before this Court was still pending as it was never dismissed in terms of Rule 10 of the Labour Court Rules, 1994;

     

  2. Jurisdiction - that the applicant has instituted a dispute of interest over which this Court has no jurisdiction because he has not established a right to be placed at grade F; and lastly

     

  3. Prescription - That the Public Service Circular relied upon was issued in 2000 but the applicant only approached this Court in 2012, representing a delay of twelve years without any application for condonation for the delay. His Counsel submitted that much as the law has not set any prescription period in this regard, it is trite that cases have to be filed within a reasonable period from the time that the cause of action arose.

The respondent denies that the applicant was engaged as a Social Worker as he alleges, and as such could not be upgraded to grade F. According to them, he was only absorbed in 1998 under the Aids Programme. It therefore denies that the applicant was ever discriminated against resulting in an unfair labour practice, as he claims.

THE COURT’S ANALYSIS

3. Applicant’s Counsel abandoned the lis pendens exception during proceedings and it therefore fell off. We shall start off by dealing with the objection to jurisdiction as it is a primary consideration. In establishing whether or not this Court has jurisdiction to entertain this matter we first have to ascertain what the cause of action is. As it is, applicant’s cause of action is a claim for an unfair labour practice alleged to have been brought about by him being left out when the salaries of Social Workers were revised in terms of the Public Service Circular No. 8 of 2000. Section 201 of the Labour Code Order, 1992 (hereinafter referred to as the Code) gives this Court jurisdiction to enquire and determine, in cases brought before it in accordance with its rules and procedure and the Code, whether a person has engaged in any unfair labour practice as defined in the Code, and to make such orders as are provided for by the Code.

4. The Court held in Venter v Compensation Commissioner[2] that a Court constituted by statute

was a “creature of statute” and derived its powers, obligations and jurisdiction from the four corners of the statute … and from no other source. It was in this respect comparable to a magistrate’s court, which was ‘… a creature of statute and has no jurisdiction beyond that granted by the statute creating it. It has no inherent jurisdiction such as is possessed by the superior Courts and can claim no authority which cannot be found within the four corners of its constituent Act.’ [3]

5. The Labour Court was established by Section 22 (1) of the Code which reads:-

There is hereby established the Labour Court, hereinafter referred to as “the Court.

By virtue of being established by law, the Labour Court is a creature of statute and can only act within the confines of the statute that created it. The Court’s jurisdiction is defined by statute, outside of which it cannot function without it being ultra vires. The unfair labour practice regime is regulated by Part XV of the Code as amended by the Labour Code (Amendment) 2000. Hence, in order to qualify as an unfair labour practice, the alleged act must fall within acts contemplated under Part XV of the Code. The discrimination envisaged under Section 196 (1) of the Code as amended is discrimination against union members and officials.

6. Having considered the provisions of Part XV of the Code as enunciated above, one wonders whether we can classify applicant’s case as an unfair labour practice. Surely not. His  is a clear case of purported underpayment or non - payment of wages as envisaged by Section 226 (2) (c) of the Labour Code (Amendment) Act, 2000 as amended by the Labour Code (Amendment) Act of 2006 which gives the Directorate of Disputes Prevention and Resolution (DDPR) power to, inter alia, resolve:-

A dispute concerning the underpayment or non - payment of any monies due under the provisions of this Act.

7. Wages are protected under Part VI of the Code. Applicant’s claim falls squarely within the jurisdiction of the DDPR. His claim is, in a nutshell, that he was not paid a salary that he deserved as a Social Worker, a clear case of alleged “non - payment” or “underpayment” of wages which are “monies due” under Part VI of the Code. Whilst we appreciate the inconvenience suffered by the applicant and the fact that the matter was initially filed with the DDPR which declined jurisdiction,[4] we are constrained by law in determining the matter. As far as we are concerned, the learned Arbitrator erroneously declined jurisdiction.

8. The Court cannot do things for which it is not empowered by the enabling legislation or statute - Kou v President of the Labour Court and Another.[5] This principle has been reiterated in a number of our cases such as Lesotho Amalgamated Clothing and Textile Workers’ Union v Maluti Leather[6] and Boshepa Mapesela v Lesotho Bank and Another.[7]The court’s powers in relation to the unfair labour practices jurisdiction has clearly been set out in Part XV of the Labour Code (as amended).

ORDER 

9. In light of our determination on jurisdiction, it is unnecessary to consider the other aspect raised by the respondent. We therefore come to the following conclusion that:-

  1. The Court has no jurisdiction to determine applicant’s claim albeit not on the grounds raised by the respondent;

     

  2. The applicant may approach the DDPR for relief; and lastly

     

  3. There is no order as to costs.

 

THUS DONE AND DATED AT MASERU THIS 09th DAY OF MARCH, 2017.

 

 

     F.M. KHABO

PRESIDENT OF THE LABOUR COURT

 

 

P. LEBITSA                                                                                                                   I CONCUR

ASSESSOR

 

L. RAMASHAMOLE                                                                                                                             I CONCUR

ASSESSOR

 

FOR THE APPLICANT     : ADV., L.A. MOLATI  - MOLATI CHAMBERS

FOR THE RESPONDENT : ADV., N.B.  PHEKO - KEM CHAMBERS

 

ANNOTATIONS

STATUTES/RULES REFERRED TO

Labour Code Order, 1992

Labour Code (Amendment) Act, 2000

Labour Code (Amendment) Act of 2006

Labour Court Rules, 1994

CITED CASES

Kou v President of the Labour Court and Another CIV/APN/153/95

Venter v Compensation Commissioner (2001) 22 ILJ 2425 (T)

Lesotho Amalgamated Clothing and Textile Workers’ Union v Maluti Leather LC 1/94

Boshepa Mapesela v Lesotho Bank and Another C of A 2/99

 

[1] Public Service Circular No. 8 of 2000

[2]2001 (4) SA 753(T) and also in  (2001) 22 ILJ 2425 (T)

[3] Supra at 757B/C-D

[4] Annexure “PTI” to applicant’s originating application

[5] CIV/APN/153/95 paragraph 8

[6] LC 1/94

[7] C of A 2/99